Michael Bryant’s advice on aboriginal consultation: ‘Do a deal’

Former Ontario minister of aboriginal affairs Michael Bryant has a simple message for junior mining companies confused about the duty to consult and accommodate aboriginal communities over their exploration plans.

March 7, 2012
by Mining Markets staff

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Former Ontario minister of aboriginal affairs Michael Bryant has a simple message for junior mining companies confused about the duty to consult and accommodate aboriginal communities over their exploration plans.

“Do a deal,” said Bryant, who spoke at the Prospectors and Developers Association of Canada convention this morning.

Rather than getting bogged down in the process of consultation and accommodation, Bryant urged both companies and First Nations to focus on getting to an agreement.

“Consultation and accommodation is a means to an end, and the end is an agreement.

“The reality is for most of these projects. . . if you don’t get a deal, it just doesn’t matter how much consultation and accommodation you did because you will be in the courts and you will spend an enormous amount of time and money on litigation trying to prove that you consulted and accommodated enough,” he said.

“Too often, the discussion around the test for consultation and accommodation gets in the way of an agreement. . . There’s no judge on the planet who’s going to say that an agreement does not amount to consultation and accommodation, assuming of course you have full disclosure and meet all terms of a regular contract.”

While a lawyer himself, Bryant laid much of the blame for the focus on process over outcome on the legal profession being structured around the billable hour. Lawyers almost have an incentive to draw negotiations out, rather than getting to the point — which is to suss out the common ground between the parties. As a result, Bryant advised companies to pursue flat-fee options with both the lawyers and consultants helping them with First Nations negotiations.

He was also critical of the approach taken by the Supreme Court of Canada regarding consultation, which he said “to some extent, did a disservice to the fulfilment of aboriginal rights on the one hand, and the development of our economy on the other hand, by setting forth a quasi-deductive test for how you can satisfy the requirements of the Crown with respect to consultation and accommodation.”

In other words, the court’s focus was on coming up with a test for what is required for consultation and accommodation just short of an actual agreement, Bryant said.

Bryant, who also served as the province’s attorney-general for four years, says that for consultation and accommodation to be meaningful, First Nations have to have the right to say no to exploration and development.

But that doesn’t mean abandoning the rule of law, Bryant explained.

“There’s no question that the rule of law has to be upheld and the recipe here is not one of anarchy. But the issue becomes whose rule of law? Because you see with all of these outstanding claims – land claims on the one hand, and aboriginal activity claims (fishing, hunting, economic development) on the other hand… it’s not settled and it’s not going to be settled in the near future, these are being resolved.”

In addition, Bryant pointed out that some First Nations don’t accept the legitimacy of Ontario courts.

“Aboriginal people often feel no particular ownership over the kinds of lawmaking offered by Ontario courts. So going to the courts is not the solution. Because that’s not necessarily going to be accepted by the First Nation as the final word on a particular dispute – which is why there should not be a dispute.”

Moreover, the uncertainty created by such disputes is obviously bad for the company.

So what is the solution?

Bryant suggested an “aboriginal commercial code,” the brainchild of University of Toronto professor Douglas Sanderson, could be the answer.

Basically an aboriginal commercial code would set the rules of engagement for both parties regarding transactions and outline what happens if there is a dispute (arbitration through a panel rather than going through the courts). The community would have a hand in crafting the code, and it would be done in plain language. Bryant says such codes have worked well where they exist in the U.S.

Bryant recently left Norton Rose, where he worked as an advisor on aboriginal issues and natural resources. He is now a visiting professor at York University’s Osgoode Hall law school, and has started a consultancy called Humilitus Group. Bryant became minister of aboriginal affairs in 2007, about a year after a messy dispute between the junior Platinex (PTX-V) and the northern Ontario First Nation band Kitchenuhmaykoosib Inninuwug (KI) erupted. In 2009, (after Bryant had left the government) the Ontario government paid Platinex more than $5 million to give up its Big Trout Lake PGE property, and to drop lawsuits it had launched against the government and KI.

On Sunday, Ontario Mines Minister Rick Bartolucci announced the government is withdrawing 23,000 sq. of land around KI from staking and mining. However, that decision does not affect claims in the area held by God’s Lake Resources (GLR-C), which is planning a 3,000-metre drill program on land that KI says is actually a burial ground.